tv [untitled] February 6, 2012 12:30pm-1:00pm EST
uncertain environment and significant risks by his own attorney's writings. although, as i know too well, if you shop enough you can always get an attorney to give you the opinion you want. you can go to enough attorneys to get it. if you hire a good attorney, he will even tell you you can pardon a criminal who is still a fugitive from justice. we know that from history. we know that from recent history now that you can get an opinion that is exactly the opposite of centuries of precedent, exactly the opposite of your predecessors, exactly the opposite of still majority leader reid's own view of recess occurring or not occurring. vice president biden said in 2005 no president is entitled to the appointment of anyone he
nominates. to new orleans president is entitled by the mere fact he nominated someone. that's why they wrote the constitution the way they did. it says advise and consent. the senate did not consent. the senate chose specifically not to act, even bringing to a vote and failing to get closure. ultimately we will decide nothing here today. we are here to evaluate the risk to the american people of a government that has appointees who may not be able to act on behalf of the american people with the rule of law. the courts will soon decide, and the sooner the better, whether or not these appointments are valid and, if so, whether or not
a law limiting taxes to the american people is valid. because there will can be no doubt the two cannot be valid. you cannot be in recess and not in recess. you cannot choose while in recess to pass a law and then choose to not be in recess for purposes of recess appointments. ultimately, these and other issues will be decided but the committee is here to understand the risk, to understand the likelihood, and at least to ensure that government begins facing the real problem of this uncertainty, this uncertainty that may last only a few weeks or may last for the rest of this administration. on december 23rder, while in pro forma session the senate passed and president obama signed the temporary payroll tax continuation act of 2011.
i am just as concerned that the irs is not collecting those taxes when, clearly, they were in recess according to the president. this creates another constitutional question. the constitution did not consider partial recess or recess for this purpose and not that purpose. y you're either in recess or not. more importantly, the senate may not act to be in recess to the exclues of tes -- excluees coll the other body. there is no such thing as the house is in session and the senate is not because if we are in session and the senate is not no, law can be passed. our founding fathers anticipated us coming to washington, or new york before that, for a period of time and coming home to our
constituencies for a rather significant period of time. many americans rightly so think that we were better off when we left time for a period of time and really got in touch with the people we represent. but that's not the issue here today. we are now at 365-day-a-year congress. we are at call by the president and can be back in a number of hours. when we are, in fact, in perform what session, that's the anticipation. the anticipation that if needed we will be back with a full quorum in a short period of time. u.s. senators were informed that, in fact, they could be called back. they were informed that they were not in recess and they made that decision. today we will be hear from a prominent united states senator, but more importantly, we'll hear from a constitutional scholar, the son of a constitutional scholar, about what he believes as a senator. then we will go on to hear from
other witnesses, but most importantly, there will be a lively dialogue here today because, clearly, the decision now is on a very partisan basis. the minority will insist that both are legal while the majority will at least question that both cannot be legal and binding. one has to give. with that i recognize the ranking member for his opening statement. >> thank you very much, mr. chairman. i thank you for holding this hearing and to you, senator lee, welcome to our committee. mr. chairman, if the committee really wants to conduct an even-handed examination of president obama's recess appointments we need to look at a much bigger issue first. the unprecedented obstruction by senate republicans of the constitutional confirmation process. republicans have raised constitutional concerns about the president's recess appointments, but the real issue here is the effort of 44
republican senators to sabotage the mission of a consumer financial protection bureau. in a letter the republican senators wrote last may, they declared their opposition to any -- any nominee to head the consumer financial protection bureau. these republicans admitted that the president's nominee, richard, was highly qualified for the position. as the attorney general of the state of ohio, he recovered billions of dollars for retirees, investors, and business owners, and he was on the front lines to protecting consumers from fraudulent foreclosures and financial predators. senator mike lee conceded that he was well qualified for this position. and i quote, my decision to oppose his confirmation by the senate has nothing to do with his qualifications, says senator
lee. rather, i feel it is my duty to oppose his confirmation as part of my opposition to the creation of cftb, itself, end of quote. this gang of 44 republican senators proposed the creation of consumer bureau. once the department affirmative director is put in place the bureau will have issue to protect condition -- consumers from unfair practices by mortgage servicers, payday lenders, debt collectors, private student lenders, and credit reporting agencies. these are exactly the protection republicans wanted to block. article ii of the constitution says the president shall nominate and appoint officers of the united states, quote, with the advice and consent of the senate, end of quote. nowhere does the constitution
authorize senators to block all nominees regardless of their qualifications because they object to the current law, the current law, of the land and do not have the votes to change it. constitutional scholar tom mass mann calls this republican boycott, and i quote, a modern day form of nullification, end of quote. and says, i quote, there's nothing normal or routine about this, end of quote. as our committee has heard repeatedly, there are millions of american families who are currently in foreclosure. many of them in my district. many of whom were subjected to wide spread and illegal abuses by mortgage services. nearly 20 million consumers take out payday loans from an industry widely known for its scrupulous behavior. what is the republican response? they want to cut the legs out from under the agency congress created. congress created to protect american families from exactly these types of accuses by mortgage services, payday le
lenders. today's new concern about litigation arising from the appointment is a red herring. the corporate interest that oppose the bureau to begin with are the same interests that are now aggressively challenging the consumer protection in court. as with the consumer bureau, republicans also oppose the entire mission of the national labor relations board and have blocked the president's appointments if an effort to avoid it. in short, senate republicans left the president with no choice. these recess appointments would only wait to comply with content in establishing and maintaining fully functioning agencies. the fact is that president obama has been extremely restrained in his use of recess appointments. during the full terms, president george w. bush had made 171 recess appointments.
president clinton had made 139 recess appointments. and president reagan had made 240 recess appointments. in contrast, president obama has made just 32 at this point in his presidency. i hope we can ask our witnesses today not only about the president's recess appointments but also about a much more significant issue. unpress sented obstructionism by senate republicans that is intended to cause irreparable harm to american consumers. with that, mr. chairman, i have a minority report that we produced. i ask you then that it be inserted into the record. >> is it -- it doesn't appear to be a report, but the document you have, we reviewed them and i have no objections for them placement in the record. >> thank you very much, mr. chairman. >> thank you. we now go to our first witness.
our first panel is senator mike lee of utah. senator lee has spent his entire life both studying and participating in our judicial system. as child he attended arguments before the united states supreme court given by his father, rex, who was solicitor general under president ronald reagan. senator lee later clerked for judge alito -- justice alito, both when he was a member of the third circuit court of appeals and later, a supreme court justice. after spending time in the private sector, he was asked to serve as the assist ant u.s. attorney in salt lake and then as general council to general jon huntsman. few people with this type of experience and understanding of our constitution and our judicial process have served in the congress. so although senator lee is a freshman, he is certainly not new to the questions that the
senate faces and our country faces here today. and with senator, i understand that stying and will questions, is that correct? >> yes, sir. yes, sir. >> and as is customary for everyone, except, actually required in the rules, except for members of congress, you will not be sworn, in that you are a member of our body. with that, the gentleman is recognized. >> thank you, mr. chairman and ranking member cummings for the invitation to come here and address you and the other members of the committee. it's an honor to address you today. i'm here to address the constitutional prog tives of congress. regardless of whatever political concerns i might have with these nominations, my overriding, dominating concerns here is not partisan. rather, it's an institutional and a constitutional concern that i'm here to explain. and then answer any questions that you might have regarding those concerns.
president obama's january 4th, 2012, appointments are unconstitutional because they did not comply with the requirements for appointments set forth in the constitution. those requirements, i might add, are important because as the founding fathers discussed in that fateful convention in the summer of 1787 that occurred in philadelphia, the founding fathers were unwilling to grant this power on an unrestrained basis to an executive as they would argue that it would not be wise to, quote, grant so great a power to any single person as the people would think we are leaning too much towards monarchy, close quote. these appointments were unconstitutional because they neither received the advice and consent of the senate nor were they made during a senate recess. the kind of recess con aniable under the recess appointment clause. they are different in kind than
previous recess appointments made by any president from my political party in our nation's country. no president has ever unilateral appointed an executive officer during a recess of hess r leles three days, either has he ever asserted the power to determine for himself when the senate is or is not in session for purposes of recess appointment's clause. in making these appointments, president obama has not to my knowledge asserted that his january 4, 2012, appointments can be justified based on the three-day adjournment that occurred between january 3, 2012, and january 6, 2012. and this is for good reason. surely any such assertion of the recess appointment power would be unconstitutional. the department of justice has repeatedly, and over the course of many decades, opined that an adjournment of significant
length and particularly an adjournment of three days or less, that is any adjournment that's of insignificant length because it's of three days or less, does not constitute a recess for purposes relevant to this recess appointments clause. in the text of the constitution evidence is that the framers did not consider an adjournment like this to be constitutionally significant. it's also significant here that article i section 5 provides that neither house during the session of congress shall without the consent of the other adjourn for more than three days. so if an intrasession adjournment of less than three days were considered constitutionally sufficient for the president to be able to exercise this recess appointment now we're it's unclear what, if anything, would prevent the president from routinely bypa bypassing the constitutional's advice and consent requirement and appointing nominees during even weekend adjournments which routinely involve periods of 72 hours or even more in which the
senate may not be actually in the practice of holding committee hearings and voting and so forth. instead, in asserting that they were constitutional he relied on a memorandum opinion produced by the legal office ofe departmentn as olc. this olc merm ran dumb asserts the president may unilaterally conclude the sessions such as those held by january 3rd, 2012, and continued every tuesday and every friday until january 23rd, 2012, somehow do not constitute sessions of a senate for purposes relevant to the recess appointments clause. this assertion is deeply flawed because the procedures accomplished by the constitution it is for the senate and it's not for the president to decide when the senate is in session. indeed, the constitution expressly grants the power to determine the rules of its own proceedings. to assert that the president has an unconstrained right to
determine for himself when the session is or is not in session and to appoint nominees unilaterally at any time he feels the state is not responsive, as responsive as you would like it to be, even when the senate is meeting, is to trample upon the constitution separation of powers and the system of checks and balances that animated the adoption of the advice and consent requirement. i look forward to answering your questions. and as i answer those questions, i will continue to emphasize again and again that hoours is t a government of one. these are real rights upon which the president trampled. this is power he's taken that doesn't belong to him. it belongs to the american people. and under our constitutional system, that power is to be exercised by the people's elected representatives in the senate and not by the president alone. there are people throughout my state and across america who feel powerless and that's why i've made the comments i have, that this is a lawless action that we need to object to
strenuously. >> i thank the gentleman. i did not limit you to five minutes by i appreciate your accuracy. i'll now recognize myself for a first round of questions. >> we'll call it professional courtesy. i appreciate in the senate when people limit themselves to five minutes. >> being a house member i noticed when house members go to the senate there's a veil of forgetfulness that we somehow see. senator, the cfpb passed under dodd frank. isn't it unique or fairly unique in that it receives its funding without appropriation from congress? >> yes, that's my understanding. is it post because this position is embedded within the federal reserve. because the federal reserve bank is not, in a sense, in a literal sense, in the traditional sense, a government agency but rather a private, for-profit corporation. it's not an entity that congress
controls in the sense of controlling its purse strings. and so that is a significant concern that many have. >> so you had no other way to ask for reform, consideration, or anything else other than this confirmation? it was an unusual situation in which one of the ordinary powers of the house and the senate is to not fund something that a previous congress has chosen to do, but in the case of the cfpb that's not the case, is that correct? >> that is correct. in that respect it enjoys an unusual degree of legislation from other controls of government. that historically has been reserved for despites. >> good word. one of the things that i've been given and asked to be placed on the record, is on their website they note that 97% of president obama's nominations in 2011 werer confirmed by your body. is that roughly your understanding? >> yes.
>> so the fact is you're practically a rubber-stamp to what the president understanding? >> yes. >> you're practically a rubber stamp. >> some try not to see it that way but we've been cooperative in confirming nominees. i, in fact myself despite policy, ideological differences with many nominees, i continue to vote for them. most of them have been confirmed. many with my vote. so you've exercised consent affirmative 97% of the time. let me go to another portion because you're both personally and as a family historically better informed than we are. hasn't the senate exercised this refusal in the past, even at times to the supreme court. hasn't it been the view the senate decided not to have a supreme court, all they would have to do is wait for them to die off. ultimately it is within the power over a period of time for
the senate to choose not to fill vacancies, within historic power and they have asserted it in the past. >> the supreme court certainly is on a different plane from other government officials. unlike the people who served in the cfbb or elsewhere are not people whose positions are specifically created under and identified in the constitution. so that's different. but the overarching question you're asking is whether or not the senate in its advice and consent function is required to give its consent to, in fact, approve. it isn't. so senate's prerogative. >> so both at district court, circuit court of appeals and actually at the supreme court, they have chosen simply not to act on presidential appointments in the past. and by doing so, let them hang
until the president withdrew them or nominee went somewhere else or the president's term expired or he found somebody else to a point. snark. >> in many, many more instances. >> ambassadors are one of the confirmations you do in the senate. if we do not have an ambassador, we, in fact, have a lower standing in that foreign country, a lower ability to have a presence around the world. isn't that true? >> that argument has been made. there is, in fact, some truth to it. >> they certainly envision, not just some affectation of the administration's last congress. isn't it true it has been the practice of the senate under senator reed sometimes simply to say that nominee is dead on arrival. go find somebody else and not call for a vote? >> yes. >> isn't it true that often nominees are prevetted so as not to embarrass them.
and in fact there's a whole discussion they so want to not have that controversy. >> correct. well-known fact this occurs and with good reason. >> good reason. so i guess a couple of last questions. motion to adjourn in the senate. a different body here but an order here at any time. was there a motion to adjourn by the democrats issued? did they try to adjourn? >> my understanding we could not adjourn consistent with article 1 section 5 of the constitution we were required to obtain the consent of the house of representatives. before adjourning for a period of time longer than 72 hours. given we didn't receive such consent the senate was unable to adjourn for longer than 72 hours so we continued holding pro forma sessions every 72 hours throughout that period. >> let's talk about pro forma sessions quickly.
every third day who got in the chair over at the senate. was it a republican? >> normally a democrat is my understanding. >> normally a democrat. >> normally or always. >> always. >> he had to put a democrat in the chair to hold session every third day and he did so. >> correct. >> i recognize ranking member for 5 minutes 49 seconds. >> i want to thank you for bringing these concerns before us. i'm concerned a large number of senators tried to block a candidate who what is extremely qualified for a post because they disagreed with the law congress passed relating to the bureau. on december 7, 2011, your office released a press release that stated, and i quote, my decision to oppose his confirmation by the senate has nothing to do with qualifications but i feel
it is my duty to oppose this confirmation as part of my position to the creation of the cfpb itself. my question is, the senate's role is to give advice and consent. senator, just to be clear, you didn't have any problem with him, did you? >> i don't have any personal problem with him. i'm sure he's a wonderful human being. >> you felt he was qualified for the job? >> i feel that he possesses professional qualifications which might well serve him well in a variety of government positions. >> let me pull up slide five on the board. c. gordon gray, slide five, who was the white house counsel to president bush will be testifying on the next panel of this hearing. his view is actions would be unconstitutional act for a senator.
let me read to you what he said. i quote, i believe the use of senate cloture to block nominations contradicts constitution's advice and consent clause. so senator lee, is your message to mr. gray that he didn't know constitutional law? >> i certainly would never say that. i have enormous respect for mr. gray. i consider him a friend. i also consider him something of a role model. as a constitutional scholar and i admire his work. i'm not sure of the totality of the circumstances in which he made that comment but let me say th this, my belief because congress is a legislative body consisting of elected officials and those elected officials are retired in increments, especially in the senate where we have elections every two years, you often have a set of laws one body has to deal with. in many instances you have
members of a new congress that didn't vote for a previous law. it's not uncommon, for instance, to have a law that creates a government office in one session of congress that a subsequent congress refuses to fund or refuses to fund part of its actions. that happens from time to time. now you might have a senate that decides not to confirm somebody to a particular position perhaps because of the qualifications of an individual or perhaps they have concerns about that office, or the power that office might yield. i believe it's not improper for congress to raise concerns, raise concerns about the office itself when going through the nominations process. it is at the end of the day the senate's prerogative to confirm or not to confirm. there is nothing in the text, original understanding or history of the constitution that suggests senate's prerogative to provide advice and consent means the consent, in fact, has to be
granted. >> in other words if you -- if a senator disagree with the law, then it's your opinion that they are within their rights under the constitution to basically say i'm not going to vote to confirm a nominee. is that right? the underpinning law. >> exactly same respect and for precisely the same reasons that senator or congressman for that matter might refuse to vote to fund a particular office that was created under a previous law adopted by a previous congress. that is not only not improper but that is part of what it means to live in a constitutional republic in which laws are made and government programs are funded only by regularly elected officials who stand for re-election and may lose election after a while. >> in addition on february 2nd,
2005, senator jon kyl one of your colleagues made the following statement on the floor regarding the gonzalez nomination, and he said, "when someone is qualified and has the confidence of the president, unless there's some highly disqualifying factor brought to our attention we should aseto t president's request. what's your opinion on that? >> i make it a point not to speak for my colleagues. i don't know the totality of circumstances in which my friend senator kyl made that statement. i will say first of all any senator may decide to grant or withhold his or her vote to confirm or not to confirm anyone for any reason just as he or she is free to vote or not vote for any particular budget or appropriations act or anything else. but secondly, and perhaps more importantly, the fact that there is delay, the fact there has beenay